LAWS(J&K)-1998-4-26

UNION OF INDIA Vs. GH NABI SHEIKH

Decided On April 06, 1998
UNION OF INDIA Appellant
V/S
Gh Nabi Sheikh Respondents

JUDGEMENT

(1.) THE order dated 21 -7 -1993 of Munsiff, Sub Registrar, Srinagar allowing Ghulam Nabi Sheikh Wireless Operator of Sub Division Office Telephone, Anantnag, Kashmir to continue to discharge his functions at the place of his posting earlier to his transfer to Kargil -Ladakh, is impugned in this revision. Ghulam Nabi Sheikh, Plaintiff filed a suit for declaration and permanent injunction on the pleaded grounds that the plaintiff worked in stints for more than two years at Leh -Ladakh, during his service career on his transfers to Leh. The plaintiff has been again transferred to Kargil on 18 -12 -1992 (order Annexure -D). The petitioner feeling aggrieved of this order challenges the order on the ground that in view of the plaintiff having served for more then two years at Leh, during his three stints of transfer to Leh. The present transfer ordered on 18 -12 -1992 is in violation of rules, regulations, standing orders and circulars governing the plaintiffs instant transfer case. The plaintiff having crossed 45 years of age, cannot be transferred to frontier or high altitude area. His case is covered by circulars which forbid an employer to transfer an employee above 45 years to a high altitude or frontier area. Besides, under the rules of State cadre employees, one months prior notice has to be served on the employee in connection with transfer to such place. The order of transfer has been passed malafide and is biased. The transfer order is sought not be declared null and void and further relief of injuncting the defendants permanently from transferring the plaintiff to any frontier area, is also prayed for.

(2.) THE defendants/respondents appeared and filed written statements/objections. The plaintiff is admitted to be an employee of the Telecommunication department. His transfer and posting at Kargil is also admitted. The transfer is stated to be in the interest of service and public interests. Further, it is stated that there is no rule or order which excludes the plaintiffs case from serving in Kargil, where he has served previously. The circulars and rules are stated to be not applicable to the plaintiffs case. The suit is stated to be non -maintainable and bad for omission to serve section 80 C.P.C. notice on respondents. Even dispensing notice under section 80 C.P.C has not been sought and granted by the court. The said suit is not maintainable an the Court has no jurisdiction to grant the application for interim relief.

(3.) ON these pleaded grounds, plaintiff/ respondent moved an application for ad -interim injunction to restrain the petitioners/ defendants from implementing his order of transfer and to allow the respondent to continue to work as Wireless Operator at S.D.O.T. Anantnag, his original place of posting. Objections were filed by the telecommunication department and its officials/ defendants in terms adopting almost all pleas put forth in the written statement referred above.